In German case law, blackening denotes a group of cases of unfair conduct in business dealings ( Section 4 No. 2 of the Act against Unfair Competition (UWG)). In conjunction with the general clause of Section 3 (1) UWG, the provision prohibits "unfair conduct, in particular, who ... claims or disseminates facts about the goods, services or the company of a competitor or about the entrepreneur or a member of the management that are suitable, to damage the operation of the company or the credit of the entrepreneur, unless the facts are proven to be true; If the communication is confidential and if the person making the notification or the recipient of the communication has a legitimate interest in it, the act is only unfair if the facts have been asserted or disseminated contrary to the truth ”( UWG ).
History and international context
In the tradition of German fair trading law, credit damage and " defamation " about the business of competitors has long been known and prohibited under the descriptive, yet never used by law, denotation blackening. With the amendment of 1909 in Section 14 (1) UWG (old version), the corresponding offense found its way into the law against unfair competition (UWG). With the UWG reform of 2004, the facts were basically regulated unchanged at the current point and were not significantly affected by the UWG reform of 2008.
The "blackening offense" is not a peculiarity of German fair trading law. Similar regulations exist in many European legal systems. The possibility of a European harmonization of this fact is assessed with skepticism, at least in the German legal literature.
The offense protects the “individual business honor” of the competitors ( § 2 No. 3 UWG) against the assertion of untrue facts about objects of your company or the person of the entrepreneur or the company management by other competitors. Here, as in general in German law, facts are to be understood as all circumstances that can be proven by means of procedural law. The facts do not cover pure value judgments or expressions of opinion, some of which are covered by Section 4 No. 7 UWG. These circumstances must continue to be capable of damaging the competitor's reputation in a qualified manner, for example with regard to his credit on the market. The statement is not unfair if it is demonstrably true or if it was made confidentially - in the sense of secrecy - and there is a legitimate interest in it. The knowledgeable communication of untrue facts is not privileged in this respect.
A vivid example of an unfair act of denunciation is the assertion of a competitor to a third party that the denigrated competitor does not exist and therefore cannot afford it.
The person concerned is entitled to injunctive relief and removal claims according to § 8 UWG as well as claims for damages according to § 9 UWG. Contrary to Section 8 (3) UWG, it can be assumed that these claims can only be asserted by the person concerned and not by appropriately qualified associations. Because the person concerned must be able to decide for himself whether he is pursuing protection of his individual business honor or not.
- Joerg Brammsen, Simon Apel: The "blackening", § 4 No. 8 UWG , in: Competition in Law and Practice (WRP) 2009, 1564 ff.
- Joerg Brammsen, in: Günter Hirsch , Peter W. Heermann (ed.), Munich Commentary on Unlawfulness Law , Vol. 1, Munich 2006, § 4 No. 8.
- Dirk Bruhn, in: Henning Harte-Bavendamm, Frauke Henning-Bodewig (eds.), Law against Unfair Competition: UWG , 2nd edition, Munich 2009, § 4 No. 8.
- Ansgar Ohly , in: Henning Piper , Ansgar Ohly, Olaf Sosnitza: Law against Unfair Competition: UWG , 5th edition, Munich 2010, § 4 No. 8.
- Matthias Rabbe, Silvan Schubmehl: Country Report Germany , in: Martin Schmidt-Kessel, Silvan Schubmehl (Ed.), Unfair competition law in Europe. A collection of country reports on the law against unfair competition , Munich 2011, p. 67 (108 ff.).
- ↑ to UWG 1909 RGBl. 1909, p. 502 f., Where an official heading with corresponding content is missing.
- ↑ see the respective sections in Schmidt-Kessel / Schubmehl, Lauterkeitsrecht in Europa, pp. 206 ff. (England), 228 ff. (Estonia), 269 ff. (France), 390 ff. (Italy), 609 ff. ( Switzerland), 695 (Hungary).
- ^ Matthias Leistner, inventory and development perspective of European fair trading law , Journal for European Private Law (ZEuP) 2009, 59 (90).
- ↑ See Landgericht Erfurt , judgment of May 8, 2007, Az. 1 HK O 28/07 (juris).